Smith, a war crimes prosecutor at the International Criminal Court in The Hague, is recovering from surgery after injuring his leg while riding a bicycle recently. He was appointed on Friday to oversee the Justice Department’s investigation into Trump’s role in efforts to overturn the results of the 2020 election, as well as the department’s investigation into the misuse of national defense secrets at Trump’s Mar-a-Lago residence and private club. More than 300 classified documents were discovered months after he left the White House.
Attorney General Merrick Garland said it is in the public interest to hold special counsels accountable, not Justice Department officials, as Trump begins his 2024 presidential campaign and to avoid conflict over President Biden, who defeated Trump in 2020. He says that he will also be a candidate.
Garland and Smith both vowed that the appointment of a special counsel would not slow down the case in either case, and Smith had already gotten involved, even though he is from the Netherlands. For example, according to Monday’s court filing, Smith reviewed arguments in the months-long legal battle between the Justice Department and Trump’s attorneys over documents seized during the FBI’s Aug. 8 raid of Mar-a-Lago.
Investigators believe Trump’s motive for the classified documents was ego, not money
A panel of federal appeals court judges in Atlanta is set to hear arguments Tuesday over whether a federal judge appointed a well-known outside legal expert as a special master to review many of those documents.
Justice Department officials declined to answer questions Monday about the mechanics of the special counsel’s work. They also did not say whether some of the senior officials close to the Trump investigation would now recuse themselves from the task or temporarily step down from their agency duties to work in the special counsel’s office.
Mary McCord, a former national security official at the Justice Department, said at this point she doesn’t expect political appointees to serve in the special counsel office, but career prosecutors could continue to work in that new structure.
The Department of Justice may need to make key personnel decisions about which career employees are transferred to serve on the special counsel team. For example, Jay Bratt, who heads the Justice Department’s counterintelligence division, has played a major role in the Mar-a-Lago investigation so far, but may be working on other major investigations within the department that don’t involve Trump.
If Bratt provides more information to the special counsel, he will not remain in his current role, McCord said.
That means the Justice Department will have to determine whether it makes sense for Bratt to give up his other duties and work full-time for the special counsel. McCord said the special counsel could seek advice from Bratt if he remains in his current role.
Aside from those kinds of decisions, he said he doesn’t expect the Mar-a-Lago investigation to change much because of Smith’s appointment — primarily because the criminal investigation is well underway and prosecutors and federal agents have secured key evidence. .
“The idea is that Smith will lead the day-to-day investigation,” McCord said, noting that federal statutes allow Garland to veto Smith’s prosecution decisions if he deems them “inappropriate and unreasonable.”
The status of major investigations into Donald Trump
Most of Smith’s former colleagues at the Justice Department generally praised him as a dedicated prosecutor who never shied away from tough cases, but one investigator who worked with him on public corruption cases was less complimentary.
Former New York federal prosecutor Alan Vinegrad, who worked with Smith in the early 2000s, said: “I think he’s very talented, passionate, fearless and really committed to the prosecutor’s mission. “He’s enthusiastic and throws himself into it.”
Conversely, in 2011, Jeffrey Cortes, who served as the FBI’s acting chief of the FBI’s anti-corruption division when Smith was a colleague overseeing the Justice Department’s public integrity division, said he did not consider Smith to be quick or effective in prosecuting government officials.
“At that point, it was clear that the quickest way to kill a case was to pin it,” said Cortes, using the common nickname of the Department of Public Integrity. “The frequency with which they deviated from investigative methods and prosecutions often caused conflict between the FBI and the Department of Justice.”
Tensions between FBI agents and Justice Department officials are not unusual in corruption investigations, and Smith took over the Public Integrity Division at a critical time for both agencies.
“When Jack was in charge, assuming similar facts or a similar situation, I would have been surprised that the PIN would have cleared the case,” Cortes said. “So it makes me wonder why he would want anything to do with today’s work.”
When Dana Boente, a former senior Justice Department official, heard that there would be a special council on Friday, he immediately began thinking about who would be chosen, taking into account all the political and practical complexities of the selection. It was not easy.
Boente said the person must have experience in public corruption and national security, must not be perceived as a party, and must be willing to take on the task, which may mean giving up a lucrative job in the private sector.
“I was throwing names around and I couldn’t really come up with anyone,” he said. “I didn’t have anyone.”
Boente said Smith, who is well-versed professionally, has not drawn up a list of possible candidates. But when he later heard that Garland had appointed him, Boente said, he immediately concluded that Smith was a good choice who ticked all the right boxes.
The speed and length of special counsel investigations have been the subject of intense debate in recent years. In 2017, Robert S. Mueller’s appointment as special counsel III took two years as he investigated possible ties between Russian election meddling and the Trump campaign and whether Trump, as president, committed obstruction of justice. Mueller’s investigation has led to a series of indictments, including indictments against people in Trump’s orbit, but Trump has not been charged. Mueller also prepared a lengthy report of his findings.
Garland inherited a separate special counsel investigation from his predecessor, which is ongoing but expected to wrap up in the coming months. Special counsel John Durham was appointed two years ago under the Trump administration to continue the intelligence agencies’ investigation into Russian election meddling and the Trump campaign’s two acquittals and the guilty plea of a former FBI lawyer. Durham’s case is also expected to produce a written report.
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Although a special counsel has more freedom to manage cases and make his own decisions, that person still works for the Department of Justice and ultimately reports to the attorney general.
Brandon Van Greek, a former federal prosecutor who worked for Mueller’s special counsel, said he doubted it would take Smith as long to launch his operation as Mueller.
Unlike the Russia probe when Mueller’s special counsel was announced, Van Grack said the Mar-a-Lago and Jan. 6 probes appear to have significant resources and dedicated staff. Mueller assembled a team that included a number of people who did not work for the Justice Department; Van Grack Smith said he doesn’t think it’s necessary to hire as many outsiders as Mueller’s special counsel.
“Some of the most prominent people in Mueller’s investigation were the people who had a clear view of office space and logistics,” Van Grek said. “This has been an incredibly arduous process, and it remains to be seen whether or not Special Counsel Smith will handle it.”
Rosalind S. Helderman contributed to this report.